Ahead of SC hearing of same-sex marriage pleas, Centre reiterates — it’s legislature’s domain

In its application, the Centre has said that the prayer seeking legal sanction entails the “judicial creation of a social institution called ‘marriage’ of a different kind than contemplated in the existing law”.

The government urged the court to decide the issue with regard to the maintainability of the petitions, “as a preliminary issue…”, saying “… the issue goes to the root of the present matter and has far-reaching implications”.

The plea said “the question concerning legal recognition of same-sex marriage and its parity with the existing concept of marriage, as an exclusively heterogenous institution, which is governed by the existing legal regime and has a sanctity attached to it in every religion in the country” and “seriously affects the interests of every citizen”.

The matter “raises critical issues as to whether questions of such a nature, which necessarily entails the creation of new social institution, can be prayed for as a part of the process of judicial adjudication”, the application said.

Reiterating its earlier position, the Centre said that marriage “is a socio-legal institution which can be created, recognised, conferred with legal sanctity and regulated only [by making incidental provisions like divorce, alimony, etc.] by the competent legislature by way of an Act under Article 246 of the Constitution of India”.

“…such legislation depends upon the legislative policy of the appropriate legislature…and…the courts cannot either create or recognize any institution called “marriage” either by way of a judicial interpretation or striking down / reading down the existing legislative framework for the marriages, which undoubtedly occupies the field”, it said.

The Centre said that “the right of choice, right of choosing one’s sexual orientation and dignity attached with the exercise of such right is to be respected as a fundamental right and is fully protected and safeguarded by the competent legislature by enacting the Transgender Persons (Protection of Rights) Act, 2019”.

The statutory mechanism “specifically, unequivocally and categorically recognizes, respects, codifies and protects all the fundamental rights recognized by” the apex court in its 2014 NALSA judgment and 2018 Navtej Singh ruling “in the case of Transgender Persons which are widely defined under the Act, except of course, marriage, which is not a right except in heterosexual couples”.

The government said that “though India is a country of several divergent religions, castes, sub-castes and schools of religions, the personal laws and customs all recognise only marriage amongst heterosexual persons”. The institution of marriage is “necessarily a social concept and a sanctity to it is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance”, it said.

It urged the court not to confuse “social acceptance and adherence to societal ethos, common values, shared beliefs across religions, in case of recognition of socio-legal institution of marriage…with majoritarianism”.

The plea said what is presented before the court “is a mere urban elitist view for the purpose of social acceptance” and added that “the competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes”.